Tuesday, November 1, 2022

Dear Rachel E. Gross: Welcome to Our World

by David Balashinsky

The New York Times recently published an article by Rachel E. Gross, "Half the World Has a Clitoris. Why Don't Doctors Study It?"  As stated in its subheading, the premise of Gross's article is that the clitoris is "'completely ignored by pretty much everyone,' . . .  and that omission can be devastating to women's sexual health."  One of the leading experts in the field of sexual medicine whom Gross interviews uses the metaphor of "a small town in the Midwest" to describe the prevailing attitude among physicians about the vulva.  Paraphrasing him, Gross writes, "Doctors tend to pass through it, barely looking up, on their way to their destination, the cervix and the uterus."  But if the vulva "is an underappreciated city," Gross continues, "the clitoris is a local roadside bar: little known, seldom considered, probably best avoided."

On its face, there is nothing wrong with Gross's argument that the clitoris has been given short shrift by the medical profession.  No one even marginally familiar with the history of anatomy and the medical profession's historical treatment of women1 can be surprised by that.  The problem with Gross's article is its underlying assumption that medical knowledge of the clitoris stands in marked contrast to medical knowledge of the penis.  More particularly, that physicians' general knowledge of the clitoris is as meager as it is simply because it is proportional to their concern for the sexual pleasure and satisfaction of people with vulvas.  This lack of concern, Gross contends, not only contrasts with physicians' concern for the sexual pleasure and satisfaction of people with penises but ultimately is the chief reason for this difference in knowledge.  As Gross explains (citing Dr. Rachel Rubin, a urologist and sexual health specialist), the "clitoris is intimately bound up in female pleasure and orgasm.  And, until very recently, those themes have not been high on medicine's priority list, nor considered appropriate areas of medical pursuit." 

Reinforcing her argument that, when the medical profession does turn its attention toward women's reproductive health, its orientation is one of disease-prevention or cure (or facilitating or preventing pregnancy) as opposed to women's sexual pleasure, Gross quotes Dr. Frances Grimstad, a gynecologist at Boston Children's Hospital: "We don't do a great job . . . talking about sex from a pleasure-based perspective.  We talk about it from a prevention standpoint. . . .  We don't talk about sexual pleasure."

Although the focus of her article is on the clitoris itself, Gross emphasizes the contrast between medicine's putative preoccupation with male sexual pleasure and its indifference to female sexual pleasure:

Even in fields like urology, where male sexual pleasure and orgasm are considered integral, women's sexual health "is seen as hysteria, Pandora's box, all psychosocial, not real medicine, said Dr. Rubin. . . .   Sexual health and quality of life is not something we focus on for women."  (In contrast, Viagra is one of the most lucrative pharmacological drugs in recent decades, bringing in tens of billions of dollars to Pfizer since being introduced in 1998.)

It's significant that Gross mentions Viagra here, particularly in support of her thesis that male sexual pleasure and orgasm are of so much greater concern to physicians than women's sexual pleasure and orgasm are.  To be clear, Viagra has nothing whatever to do with "male sexual pleasure" and it is not male sexual pleasure but urinary function that is "integral" to urology.  Strictly speaking, Viagra doesn't even have anything to do with male orgasm since an erection is not necessary to have one.  Yet, in making this reference to a drug that is used exclusively to treat erectile dysfunction and no other sexual dysfunction that afflicts people with penises, Gross conflates penile erection with sexual pleasure.  In other words, she reduces male sexuality to performance: erection (and, presumably, ejaculation).  This construct reflects and perpetuates traditional patriarchal concepts of masculinity and masculine sexual prowess in which penetration and insemination are viewed as paramount while penile sensation is regarded as irrelevant and even detrimental2 to male sexual performance.

This is entirely consistent with the most glaring and overarching flaw of Gross's article.  Namely, that despite the fact that the medical profession has been every bit as indifferent - and, in fact, hostile - to the erotosensory experience of people with penises as it has to the erotosensory experience of people with vulvas, Gross goes out of her way to draw a false contrast between the two.  I am not referring to the amount of attention given overall to penises as opposed to the amount given to vulvas in the medical literature, nor am I suggesting that people with penises do not have parity with people with vulvas in medical practice.  Far from it.  And I am certainly not demanding inclusion of penises in an article about clitorises.  (No, it doesn't always have to be about men.)  Yet, virtually everything Gross has written here concerning physicians' lack of regard for the clitoris is equally true, and more so, of their lack of regard for the penile prepuce, or foreskin.  In paragraph after paragraph throughout Gross's piece, one could simply replace the word "clitoris" with the phrase "penile foreskin" and practically wind up with a perfectly accurate and cogent article explaining the widespread dearth of medical knowledge of the male prepuce and the hugely deleterious consequences this ignorance has had on the sexuality, the sensory pleasure, the sexual satisfaction, the bodily integrity and the bodily autonomy of people with penises in the United States.

This is not a trivial comparison, that between the (penile) foreskin and the clitoris.  The penile prepuce comprises up to 50% of the penile skin system.  It is a complex, fully vascularized and densely innervated erotogenic structure that contains more specialized light-touch sensory nerve fibers per unit of area than is found anywhere else on the penis, including the glans.  It also plays a critical biomechanical role during intercourse, increasing pleasure for both partners while preventing or minimizing dyspareunia for the female.  The penile prepuce also serves other functions, including protecting the glans penis, exactly as the female prepuce provides protection for the glans clitoris.  In short, the penile prepuce is an integral part of male genitalia.  It is no more an adjunct to male genitalia than the clitoris or any other structure is to female genitalia.  In fact, the evidence supports the proposition that the penile prepuce is as important to the sexual pleasure and fulfillment of people with penises as the clitoris is to the sexual pleasure and fulfillment of people with vulvasThe penile prepuce is indispensable, therefore, to providing the full range of erotic sensation, pleasure and fulfillment of which the person who has one is capable. 

Notwithstanding the erotosensory similarities between the penile prepuce and the clitoris, Gross treats it as axiomatic that male sexual pleasure and fulfillment are prioritized by physicians whereas female sexual pleasure and fulfillment are not and that this disparate treatment is directly related to the fact that physicians' knowledge of penile structure is as comprehensive as their knowledge of clitoral structure is lacking.  In support of this proposition, Gross documents "a tradition of neglect" of the clitoris.  In particular, one of the factors primarily responsible for physician ignorance about the clitoris is simply that information about this body part generally is not included in medical school curricula.  "Asked what she learned in medical school about the clitoris," Gross reports, "Dr. Rubin replied, 'Nothing that sticks to my memory.  If it got any mention, it would be a side note at best.'" 

Yet, this is no less true of what medical students typically are taught about the penile prepuce.  I put this same question (but substituting "clitoris" with "penile prepuce") to George Denniston, MD, MPH, the founder and President of Doctors Opposing Circumcision.  In an emailed response, Dr. Denniston told me that, when he was in medical school, "to the best of my knowledge, nothing was ever discussed about the clitoris or the male prepuce."  

This is one physician's experience but it is by no means exceptional.  I contacted Adrienne Carmack, MD, a board-certified urologist and author of Reclaiming My Birth Rights and The Good Mommy's Guide to Her Little Boy's Penis.  (Dr. Carmack also serves on the board of directors of Doctors Opposing Circumcision.)  I asked her the following questions: 

DB: What did you learn in medical school about the male prepuce?

AC: Nothing.

DB: Was it discussed at all?

AC: No.

DB: Were its functions, its sensory capacity and its biomechanical role in intercourse taught to medical students or to interns during rotations?

AC: No.

I also spoke with Leif Thompson, MD, a family medicine specialist practicing in Fairbanks, Alaska.  Dr. Thompson, likewise, reported having been taught nothing about the penile prepuce in medical school.  In a follow-up email to our conversation, Dr. Thompson shared the following:

In 1996 I took human anatomy as the standard coursework for medical school training in the MD program at Oregon Health Sciences University.  When it came to the section on the pelvic organs I was surprised that the male foreskin was not even mentioned once.  Not in the lecture and not in any of the reading material that was prepared for us.

As a medical student I found this odd for two reasons.  First, the foreskin is the site of the most common surgery in the United States.  At that time, I was guessing that 80% of boys were circumcised, and if you include girls in this population, this surgery was being performed on 40% of the entire US population.  Yet this part of the penis was not even mentioned.

The second reason I found this odd was, because unlike the male anatomy, the clitoral foreskin was indeed mentioned several times!  A much smaller structure, not the site of any routine surgery, and its function, the protection of the clitoris, was mentioned.

Gross goes on to explain that, historically, the clitoris has been omitted not merely from medical school lectures but from medical school anatomy books.  As a case in point, she cites the experience of Dr. Helen O'Connell when she was in medical school (in Australia): "In the 1985 edition of the medical textbook Last's Anatomy that she studied, a cross-section of the female pelvis omitted the clitoris entirely. . . ." 

This, too, is no different from the treatment accorded the penile foreskin in medical school textbooks.  A 2004 study entitled "An Analysis of the Accuracy of the Presentation of the Human Penis in Anatomical Source Materials" by Gary L. Harryman, MA (published in Flesh and Blood, edited by Denniston et al. [Kluwer Academic / Plenum Publishers, New York, 2004]; a link to this study can be found here) reviewed 90 different sources that included representations of the penis, including "definitions, photos, illustrations and drawings."  The study was based on sources "available to medical students and medical professionals in five Los Angeles, California campus bookstores and two biomedical libraries" and included "medical text books, life-sized medical models, medical study aids, medical charts, medical dictionaries, medical encyclopedias, medical catalogues and (medical) general interest books."  This is what the study found:

In the 90 sources, we found . . . 365 images of the penis.  Of these 365 images, [only] 33%, showed anatomically correct depictions of the foreskin, while . . . 67%, showed penises from which the foreskin had been amputated.  Of those . . . images [i.e., those in which the prepuce had been removed], only one includes an explanation of why the foreskin was absent.

The study further found that 

Out of . . . 272 primary images of the penis [i.e., those that "present the penis as the direct subject of study or discussion"], only . . . 29% were anatomically correct in their depiction of the foreskin. . . . 71%, were anatomically incorrect (i.e., foreskin absent). . . .  Out of . . . 93 secondary images of the penis, . . . 54% were anatomically incorrect in their depiction of the foreskin.

The study concluded that, more often than not,

the penis is misrepresented in the medical literature used in medical schools.  The penis is routinely defined and depicted in a partially amputated condition, as if this were a natural state, without explanation or caveat.  This study concludes that students are being misinformed about fundamental anatomy.

Similar to Dr. O'Connell's experience with the omission of the clitoris from Last's Anatomy, Dr. Thompson recounted to me his own experience with the practice of medical school text book publishers omitting or minimizing the penile prepuce:

It is understandable why the anatomy professor did not mention the [penile] foreskin.  The anatomy texts that I had access to represented the penis either without a foreskin, or a foreskin that was greatly diminished from its true characteristics.  Some texts showed a partially absent foreskin cut away or retracted to show the deeper structures and the glans of the penis, again, greatly diminished in size.  Basically, the depictions communicated that the foreskin (if it is present at all) is the skin that is in the way of the more important aspect of the penis.

Gross cites the medical school experience of Dr. O'Connell as evidence that, when it comes to educating physicians, female sexual physiology and function receive much less attention than male sexual physiology and function do.  Referring to Last's omission of the clitoris, Gross points out that, in contrast,

[d]escriptions of the penis went on for pages.  To [O'Connell], this widespread medical disregard helped explain why her urology peers worked to preserve nerves in the penis during prostate surgeries but not during pelvic surgeries on women.

What it does not explain - and what Gross and O'Connell both seem to fail to recognize, let alone acknowledge - is that, in men who have been subjected to circumcision, the only nerves left to preserve during prostate- or any other surgery are those that haven't already been removed by circumcision.  The nerves that surgeons endeavor to spare during prostate surgery primarily are involved not in penile sensation but in producing penile erections and maintaining urinary function.3

This, again, points to widely-held and, I would argue, deeply-ingrained patriarchal attitudes - attitudes that Gross seems to reinforce - about male and female sexuality and, especially, about male and female genitalia.  The penis is regarded as active - hence, masculine - whereas the vulva is regarded as passive and, therefore, feminine.  (That, indeed, is why the erect penis is traditionally regarded as a symbol of male power.)  In this view, the penetrative and inseminating role of the penis, possible only when it is fully erect, is prioritized to the exclusion of its sensory capacity.  To this day, this view predominates not only within the medical field but throughout popular culture.  In "Genital Cutting and Western Discourses on Sexuality," the anthropologist, Kirsten Bell, describes this attitude among her students in a course on gender that she was teaching that included the topic of female and male genital cutting:

Over the course of our discussions on this topic, one thing became clear: students did not think that carving up male genitalia had any damaging effects on male sexuality as long as the penis remained largely intact.  My students reasoned that as long as the man retained the ability to ejaculate, his sexuality was unimpaired.  They were so ready to assert that female sexuality has been totally annihilated by genital surgery of any kind and so reluctant to proclaim that anything short of full frontal castration will affect a man's sexuality in the same way, it seemed clear that something very interesting was being revealed.  Importantly, their insistence seemed to have less to do with [male and female genital-cutting] practices themselves and more to do with underlying assumptions about the nature of female and male sexuality. . . .

These assumptions, Bell goes on to explain, are reflected in the attitude (Bell, here, is citing Lenore Tiefer) that "sexual prowess is central to masculinity."

In "Circumcision, Sexual Experience and Harm," (where Bell's passage above is originally cited) Brian D. Earp and Robert Darby point out that this attitude seems to be shared by the medical profession itself:

Reading through the medical literature, one is liable to form the impression that the mere capacity to maintain an erection, ejaculate, impregnate one's female partner, or experience some degree of pleasurable sensation during sex, exhaust the scientific imagination on male sexuality.  In other words, if these or other similar basic capacities are retained, many commentators are prepared to conclude that circumcision has negligible, if any, adverse effects on male "sexual function." . . .
. . . 
A common assumption in this discourse, according to Marie Fox and Michael Thomson, is that "male sexual pleasure is not an issue provided the penis is adequate for penetration, thus privileging one popular understanding of male sexual function and pleasure."  And yet, "the sensitivity protected by the foreskin, the erogenous nature of the foreskin itself, and sexual practices relying on an intact penis - such as docking - are all erased in these characterizations."

If, on balance, the esteem in which the penile prepuce and the clitoris are held - and the erotosensory pleasure that each provides - is not quite so different after all, the parallels in medical practice do not end there.  In the opening paragraphs of her article, Gross provides a lurid description of a vulvar biopsy. 

If there was one thing Gillian knew, it was that she did not want a hole punch anywhere near her genitals. . . .

To Gillian . . . taking a chunk out of her most sensitive body part sounded a bit extreme.

For the biopsy, she was placed in stirrups and given a spinal epidural to numb the area.  Afterward, to stem the bleeding, the doctor put one hand over the other and pressed hard against her vulva. . . . Even through the anesthesia, she could feel the pressure against her pubic bone.  She screamed.

Anyone who shudders at the thought of a what a "hole punch" can do to a vulva should think long and hard about what a Circumcision Clamp, a Plastibell, forceps and surgical scissors do to the most sensitive part of an infant's penis.  And anyone who is made squeamish by Gross's description of Gillian's biopsy should watch a video of an infant being subjected to a circumcision.  (One is available in the excellent presentation given by Ryan R. McAllister, "Child Circumcision: An Elephant in the Hospital."  The clip of the actual circumcision begins at 10:24 but I encourage you to watch McAllister's entire lecture.)

One of the problems in gynecological healthcare to which Gross calls attention (citing a 2018 study in Sexual Medicine) is that "most providers 'neither know how to examine nor feel comfortable examining the clitoris.'"  But this, too, is comparable to the problem that intact boys are faced with.  Intact America reported that same year (2018) that, by the age of 7, up to 40% of intact boys had had their foreskins forcibly retracted by medical professionals who should have known better but, because of widespread medical ignorance about the normal physiology and development of the male prepuce, did not.

A related but opposite sort of problem affects people with vulvas and people with penises.  Gross reports that the 2018 Sexual Medicine study

found that a failure to examine the vulva and clitoris led doctors to regularly overlook sexual health conditions.  Among women visiting Dr. [Irwin] Goldstein's clinic, nearly 1 in 4 had clitoral adhesions, which occur when the hood of the clitoris sticks to the glans and can lead to irritation, pain and decreased sexual pleasure.

The condition of clitoral adhesions is remarkably similar to phimosis, which is when a post-pubescent person "is . . . or becomes unable to retract his foreskin. . . ."   (The hood of the clitoris, of course, is the female version of the male foreskin.  The clitoral hood and the male prepuce develop from the same embryonic tissue and both are designated anatomically as "prepuces.")  But whereas physician ignorance has led to underdiagnosis of clitoral adhesions, physician ignorance has also led to overdiagnosis and misdiagnosis of phimosis in children with penises.  At birth and throughout early childhood, the penile prepuce is tightly fused to the glans until it separates naturally at various ages all the way up through adolescence.  Ignorance by medical practitioners about the normal physiological development of the penile prepuce not only leads to the misidentification of a non-pathological condition as a pathological one but results in unnecessary "corrective" circumcisions in children who had escaped this fate during infancy.  (It is also worth mentioning here that, despite the relatively high incidence of clitoral adhesions, we never hear of medical professionals advocating the prophylactic amputation of girls' clitoral hoods during infancy in order to prevent the possible development of this condition later in life, just as we never hear organizations like the American Academy of Pediatrics or the American College of Obstetricians and Gynecologists assert that the "benefits" of surgical removal of the clitoral hood in infancy or early childhood "outweigh the risks.")

Gross describes efforts to rectify the unacceptable state of affairs that she outlines in her article.  One of these efforts aims to address the paucity of medical knowledge about the anatomical structure of the clitoris:

Dr. O'Connell set out to investigate the full anatomy of the clitoris using microdissection and magnetic resonance imaging.  In 2005, she published a comprehensive study showing that the outer nub of the clitoris . . . was just the tip of the iceberg. . . .  The full organ extended far beneath the surface, comprising two teardrop-shaped bulbs, two arms and a shaft.

Yet an equally groundbreaking study of the penile prepuce was not undertaken until 1996, less than ten years before O'Connell's study and decades after amputation of the prepuce by medical practitioners had become a routine part of childbirth in the United States.  This is reported in Jessica Wapner's 2015 article, "The Troubled History of the Foreskin," which is available in the online magazine, Mosaic

[A] pathologist named John Taylor . . . published the first description of the cells that make up the foreskin.  An uncircumcised [sic] Englishman, Taylor was initially motivated by the prospect of his Canada-born children being circumcised.  That's what led him to examine the foreskins of 22 uncircumcised [sic] corpses.  He wanted to know whether the tissue had any functional value - if foreskin cells are specialised [sic] and serve some particular purpose, Taylor reasoned, that should be weighed when considering circumcision.

Specialised [sic] cells were exactly what Taylor found.  Measuring about 6.5 centimetres [sic] long when fully grown, the foreskin is a mucosal membrane that contains copious amounts of Meissner's corpuscles, touch-sensitive cells that are also present in our lips and fingertips.  "We only find this sort of tissue in areas where it has to perform specialised [sic] function, Taylor told an interviewer. . . .  The mucosal inner surface is kept wet by a natural lubricant, and the tip contains elastic fibres [sic] that allow it to stretch without becoming slack.  "This is sexual tissue, and there's no way you can avoid the issue."

One of Taylor's most noteworthy discoveries was the "ridged band", [sic] an accordian-like strip of flesh about 10 to 15 millimetres [sic] long that is as sensitive as the fingertips.  During an erection, the band is turned inside out. . . .  In later work, Taylor and a colleague described the band as far more sensitive than the glans [the "head" of the penis], the part of the penis left exposed after circumcision.  "The only portion of the body with less fine-touch discrimination than the glans penis is the heel of the foot," they wrote.  The penis still works without a foreskin, of course.  But the foreskin is erogenous tissue. . . .

That bears repeating.  It is the foreskin, not the glans penis, that is the primary sensory structure of the penis.  This is information that has been available to medical science and to medical practitioners for a quarter century.  And it is information that has been confirmed by subsequent studies.  And yet this information remains generally ignored by medical school text book publishers and generally unknown (to give them the benefit of the doubt) by physicians.

Another effort to raise the level of physician knowledge of the clitoris that Gross writes about is that undertaken by Jessica Pin who "began a social media campaign to get OB-GYN textbooks and training standards updated to cover this anatomy."  Once again, and for precisely the same reasons, it has proved necessary for a similar project to be initiated in order to raise the level of physician knowledge of the penile prepuce.  This project has been undertaken by Your Whole Baby, an organization whose mission is "to provide gentle education to parents-to-be and healthcare providers about the functions and care of the foreskin. . . . "  As Your Whole Baby explains on its website,

In the United States, many students in healthcare-related fields receive inadequate education on the structure and functions of the prepuce (foreskin), as well as proper care of the intact penis.  As a result, medical professionals may perpetuate long-held myths surrounding the natural penis and contribute to the resistance toward leaving babies' penises intact. . . .

Your Whole Baby has begun reaching out to authors and publishers in an effort to improve the quality of medical textbooks. . . .

On the matter of harm, another distressing but necessary development that Gross writes about is that "Increasingly, women are speaking out about injuries they sustained to this area during routine procedures."  This reflects the increasing and overdue valuation that our society is now giving to personal narratives - undoubtedly, greatly assisted by the MeToo movement.

But men are speaking out also.  The Global Survey of Circumcision Harm, completed in 2012, received responses from more than 1,000 men, 100% of whom reported perceiving themselves as having been harmed in some way by the circumcisions to which they had been subjected.  The website where the results of this survey can be found includes video testimonials by men who were harmed by circumcision.  

Another site, Men Do Complain

exists to dispel the myth that men do not mind being circumcised . . . .

Men circumcised as children (and therefore without consent) often complain about their condition. . . .  Men who complain about having had their foreskins amputated without their informed consent are consistently treated as having something wrong with them rather than being treated as having had something wrong done to them [MDC's emphasis].

Earp and Darby find that 

many men who were circumcised as infants do insist that they have been sexually harmed as a result of the procedure and strongly resent what was done to them without their consent. . . .   [O]ften this absence of consent is as serious a cause of psychosexual distress as any overtly "physical" effects of the procedure.

 The same authors report that 

a 2015 YouGov poll concluded that 10% of circumcised American men wish that they had not been circumcised. . . .  [A] more recent demographically diverse survey . . . found that 13.6% wished that they had not been circumcised, with nearly a quarter of that sub-group reporting that they would "seriously consider" changing their circumcision status if it were possible. . . . [notes omitted].

Estimates of the percentage of males living in the United States who have been subjected to circumcision range from 71.2% to as high as 80.5%.  Given that there are currently 101 million males 18 and over living in the United States, and taking the lower of both of these sets of figures - that is, being conservative - ten million people with penises in this country object to what was done to their penises when they were infants.

These first-person accounts and surveys, of course, represent perceptions of harm.  "Objective" statistics are harder to come by.  Tim Hammond, a longtime human-rights activist and lead author of a recently-completed study ("Foreskin Restorers: Insights into Motivations, Successes, Challenges and Experiences with Medical and Mental Health Professionals" [2022]; Hammond T., Sardi L.; Jellison W., et al., publication of which is pending in the International Journal of Impotence Research) shared with me what is currently known and understood about the additional harms associated with non-therapeutic circumcision, which he summarized as follows:

Despite an impressive list of known immediate and short-term complications, the American Academy of Pediatrics has twice acknowledged that the precise risk and full extent of complications are likely not known.  This is because complications are ill-defined, obstetric circumcisers rarely do patient follow-up, many complications become evident only as the penis matures, and there is no comprehensive record-keeping of complications.  Some authors have reported a complication rate as low as 0.06 percent [but] at the other extreme, rates of up to 55 percent have been quoted. . . .  This reflects the differing and varying diagnostic criteria employed; a realistic figure is 2-10 percent.  A systematic review concluded that neonatal male circumcision complications are indeed common.  An analysis of medicalized circumcisions found a complication rate of 4%. . . .  Even if serious complications are statistically rare, with over 1.2 million newborn circumcisions performed annually in the U.S., a 0.06% to 4% complication rate means that 7,200 to 48,000 males per year . . . may suffer serious physical and/or sexual complications that likely also cause psychological distress or grief [internal references omitted].

Gillian, whose vulvar biopsy resulted in her losing the ability to reach orgasm, is quoted in Gross's article in words that powerfully convey her anguish about what she has suffered: "The devastation from this is something you can never repair.  Ever."  Yet, as tragic as Gillian's situation is, it also points up a crucial difference between the iatrogenic injuries suffered by the women interviewed in Gross's article and non-therapeutic penile circumcision.  This is that, in Gillian's case, as in all the others that Gross describes, the harm done to these women's erotogenic tissue and the resulting damage done to their capacity to experience sexual pleasure was unintended.  In contrast, in the case of penile circumcision, obliteration of all the erotogenic tissue of which the foreskin is comprised is the whole point.  That is why penile circumcision was promoted and employed as a "prophylaxis" against masturbation during the nineteenth century.  It is why John Harvey Kellogg is as infamous for his views on masturbation (and his enthusiasm for circumcision) as he is famous for the invention of Corn Flakes:

A remedy which is almost always successful in small boys is circumcision, especially when there is any degree of phimosis.  The operation should be performed by a surgeon without administering an anaesthetic, as the brief pain attending the operation will have a salutary effect upon the mind, especially if it be connected with the idea of punishment, as it may well be in some cases.  The soreness which continues for several weeks interrupts the practice, and if it had not previously become too firmly fixed, it may be forgotten and not resumed.  If any attempt is made to watch the child, he should be so carefully surrounded by vigilance that he cannot possibly transgress without detection.  If he is only partially watched, he soon learns to elude observation, and the effect is only to make him cunning in his vice.

It is why Moses Maimonodes, 700 hundred years before Kellogg, wrote,

With regard to circumcision, one of the reasons for it it is, in my opinion, the wish to bring about a decrease in sexual intercourse and a weakening of the organ in question, so that this activity be diminished and the organ be in as quiet a state as possible.  It has been thought that circumcision perfects what is defective congenitally....  How can natural things be defective so that they need to be perfected from outside, all the more because we know how useful the foreskin is for that member?  In fact this commandment has not been prescribed with a view to perfecting what is defective congenitally, but to perfecting what is defective morally.  The bodily pain caused to that member is the real purpose of circumcision.  None of the activities necessary for the preservation of the individual is harmed thereby, nor is procreation rendered impossible, but violent concupiscence and lust that goes beyond what is needed are diminished.  The fact that circumcision weakens the faculty of sexual excitement and sometimes perhaps diminishes the pleasure is indubitable.  For if at birth this member has been made to bleed and has had its covering taken away from it, it must indubitably be weakened. . . . [This is excerpted from Marked in Your Flesh - Circumcision from Ancient Judea to Modern America by Leonard B. Glick, {Oxford University Press; 2005}; p.65.]

To be sure, although the ostensible purpose of medicalized neonatal circumcision may, since the nineteenth century, have "evolved" from a deliberate reduction in the erotosensory capacity of the penis into something else, the anatomical structure of the penis and its prepuce have not, so the end result of penile circumcision remains the same.

Another important way in which the "documented injuries to the clitoris" sustained by the women in Gross's article differ crucially from neonatal penile circumcision is that they were the unintended consequences of surgeries or procedures that had been deemed necessary either to correct pathological conditions or to diagnose them.  In contrast, in the overwhelming majority of neonatal circumcisions, there is no pathological condition to correct - just a natural, healthy, functional prepuce.

One possible point of comparison between the iatrogenic injuries to which Gross refers and penile circumcision is in the matter of informed consent.  Gross points out that the risk of sustaining the particular type of injury suffered by one of the women profiled in her article was not mentioned in the consent form.  

But, however widespread the problem may or may not be of women being insufficiently informed about the risks to their sexual sensation posed by various surgeries, it's hard to imagine that it could be worse than the problem of parents being insufficiently informed when they are asked (and often pressured) to consent to their child's penile circumcision.

The preliminary findings of a study ("A systematic quality assessment of neonatal circumcision consent forms issued by major hospitals in Masschusetts and New York") by the organization Intaction that is currently under way were shared with me by its chief researcher and author, Mathew Goodwin.  Goodwin's investigation of

the quality of over 20 neonatal circumcision consent forms at major hospitals in Massachusetts and New York State revealed a disturbingly large variance in the risks presented to parents.  The lowest quality forms used a generic template that broadly applies to any procedure, states no specific risks of circumcision, and relies entirely on oral communication to secure parental permission.  Upon further examination of the fine print in these forms, we found that parents were asked to consent to questionable terms, such as full authorization to the hospital to use the severed skin and tissue [not just] for research . . . but for commercial purposes.  Disclosure of the hospital's financial incentives for collecting and selling infant foreskin was strategically absent.

Goodwin found that the most serious deficiency of these forms was their failure to disclose "any of the known long-term harms and consequences to the individual" of penile circumcision.   The forms also omitted any reference to the ethical consideration of the child's right to bodily autonomy and, instead, "promote[d] unsubstantiated health benefits [in order] to secure permission . . . from parents" and payment by third-party payers.

It should go without saying that the consent forms that parents are given prior to circumcision of their child routinely omit the most significant "risk" of circumcision: the irreversible loss of the most erotogenically sensitive part of the penis.  The consent forms also routinely fail to quantify this risk, which is, in fact, 100%.  

More basically, as Peter Adler has observed in "Is Circumcision a Fraud?," "Legal scholars have argued that parents do not have the legal authority to consent to the surgical amputation of normal, healthy tissue from their infant children. . . ."

Perhaps more relevant than any other factor is that no neonate ever consents to his own circumcision.  And while infancy is transitory, circumcision is permanent.  The person subjected to penile circumcision as a neonate or toddler has no way of undoing or reversing the harm that was done to his genitals and he is left without any meaningful legal mechanism of compensating him for the deprivation of his bodily autonomy.

This is in no way to minimize the tragedies suffered by Gillian or the other women profiled in Gross's article.  It is merely to point out that, for every Gillian, there is a Gary Shteyngart, for every Jessica, there is a Goodluck Caubergs and, for every Julie, there is a David Reimer.

What I have attempted to show here is that two of Gross's major premises are wrong.  To review, these premises are, first, that physicians' knowledge of penile anatomy is as comprehensive as their knowledge of vulvar anatomy is lacking; and, second, that male sexual pleasure and fulfillment are prioritized by physicians whereas female sexual pleasure and fulfillment are not.

In fact, far from being knowledgeable about the anatomy of the penis, physicians are every bit as clueless about a vitally important portion of it (the prepuce) as they are about a vitally important portion of the vulva (the clitoris).  And, far from being concerned with male sexual pleasure, physicians are concerned almost exclusively with male sexual performance

This distinction - between male sexual pleasure and male sexual performance - is important not because it falsifies another one of the premises of Gross's article but because it confirms it.  This other, deeper and implicit premise is that the disparate treatment given by the medical profession to penises and vulvas has its roots - like so much else - in patriarchy and sexism.  Although Gross does not explicitly make this argument, I do not think any reasonable person can deny that traditional patriarchal concepts and attitudes about vulvas, penises, women and men have had a profound and lasting influence on Western medical practice.  If this is one of Gross's working assumptions - and I believe that it is - I think she's spot on, but in more ways than even she may realize.

There is no doubt that the medical profession and the pharmaceutical industry in the United States pay a great deal more attention to penises than they do to vulvas.  The problem is that, most of the time, it's the wrong kind of attention.  (And with friends like these, who needs enemies?)

Superficially, the disparate treatment by the medical establishment of adults with penises and adults with vulvas might appear to support Gross's thesis that physicians have little concern for women's sexual pleasure in contrast to their abiding concern for men's.  But when one steps back and takes in the broad perspective that includes the medical establishment's treatment of people with penises from birth onward, it is difficult to come to any conclusion other than that medicine's actual concern with the penis is limited exclusively to its ability to become erect, and physicians' actual concern with male sexual fulfillment is limited to the ability of a person with a penis to achieve an orgasm brought on by the act of penetration.  The sensory experience of intercourse itself (as opposed to the sensory experience of having an orgasm, for which one does not need a partner) does not even appear to be on physicians' radar.  Nor is it, I suspect, on Gross's, which is why she seems to reflexively substitute penile virility or function for penile sensation (much as Kirsten Bell's students did) when she contrasts medicine's interest in preserving or maximizing the sexual fulfillment of people with penises with its lack of interest in preserving or maximizing the sexual fulfillment of people with vulvas.  This is also why I suggested just now that, insofar as patriarchy's effects on penile integrity are concerned, Gross misses the larger picture and is, therefore, only half right.  The medical profession's contempt for the clitoris and its contempt for the penile prepuce do not stand in contrast to one another but are, in fact, of a piece.  They are opposite sides of the same patriarchal coin.  To understand how, it is necessary to contextualize neonatal circumcision historically and socially.

The patriarchal roots of circumcision - as we know it today - in the Judaism of the sixth-century BCE4 are well established.  Explaining in 2001 (in "The Kindest Un-Cut: Feminism, Judaism and My Son's Foreskin") how he and his wife came to decide not to subject their son to circumcision, the sociologist Michael Kimmel writes that,

. . . what was ultimately decisive for us was the larger symbolic meaning of circumcision, and particularly the gendered politics of the ritual.  After all, it is certainly not circumcision that makes a man Jewish. . . .  
No, circumcision means something else: the reproduction of patriarchy.  Abraham cements his relationship to God by a symbolic genital mutilation of his son.  It is on the body of his son that Abraham writes his own beliefs.  In a religion marked by the ritual exclusion of women, such a marking not only enables Isaac to be included within the community of men - he can be part of a minyan, can pray in the temple, can study Torah - but he can also lay claim to all the privileges to which being a Jewish male now entitles him.  Monotheistic religions invariably worship male Gods, and exhibit patriarchal political arrangements between the sexes. . . .
Circumcision . . . is the single moment of the reproduction of patriarchy.  It's when patriarchy happens, the single crystalline moment when the rule of the fathers is reproduced, the moment when male privilege and entitlement is passed from one generation to the next, when the power of the fathers is exacted upon the sons, a power which the sons will someday then enact on the bodies of their own sons.  To circumcise our own son, then, would be, unwittingly or not, to accept as legitimate 4000 years not of Jewish tradition, but of patriarchal domination of women.

Another detailed analysis of the inextricability of penile circumcision from traditional patriarchal power can be found in Miriam Pollack's monumental essay, Circumcision: Identity, Gender and Power.  Pollack explains the crucial role that penile circumcision plays in what she describes as

. . . the twin patriarchal fears: the fear of woman and the fear of pleasure.  Circumcision is both the vehicle and the product, the menace and the antidote, which simultaneously assuages and perpetuates those ancient terrors.  This is the achievement and true function of circumcision.  Circumcision achieves this by violently breaching the maternal-infant bond shortly after birth; by amputating and marking the baby's sexual organ before he knows what he has lost; by disempowering, "taming," the mother at the height of her instinctual need to protect her infant; by bonding the baby to the community of men past, present and future and to a male-imagined G-d [sic]; by restructuring the family and the society in terms of male dominance; and by psycho-sexually wounding the manhood still asleep in the unsuspecting baby boy.  In all of these ways - socially, politically, religiously, ethnically, sexually, tribally, and interpersonally - the cutting of our baby boys' sexual organs is the fulcrum around which patriarchy exerts its power.  Circumcision is a rite of male domination - domination and the entitlement of domination over other men, women, and children both institutionally and personally.  It is the essence of patriarchy.

Gloria Steinem, who, I think it's fair to say, knows a thing or two about patriarchy, had this to say about circumcision:

These patriarchal controls limit men's sexuality, too, but to a much, much lesser degree.  That's why men are asked symbolically to submit the sexual part of themselves and their sons to patriarchal authority, which seems to be the origin of male circumcision . . .   Speaking for myself, I stand with many brothers in eliminating that practice, too.

Steinem was speaking figuratively, of course.  The individuals who are subjected to circumcision are not "men" and they certainly aren't "asked."  That aside, Kimmel, Pollack and Steinem all recognize that penile circumcision, when imposed upon the body of an unconsenting child, is not just an artifact of patriarchy but is intrinsic to it and perpetuates it.

In our own time, a point I have argued previously, penile circumcision persists as a deeply ingrained cultural practice in which masculinity is inscribed on the bodies of children with penises.  As I wrote several years ago,

The language that parents often use to describe their sons' reaction to the circumcision surgery is . . . highly revealing of the way in which they - whether consciously or unconsciously - are apt to regard the masculinizing ordeal of genital cutting through which their infant sons must pass.  It is not uncommon to hear parents who have subjected their infant sons to circumcision speak in glowing terms about "how tough" their "little guy" was throughout the ordeal.  It is also no coincidence that parents will often refer to their infant in this context as a "little guy" or a "little man."
. . .

Beyond literally "toughening up" the glans penis (thereby making it more "masculine"), there can be little doubt that, again, whether consciously or unconsciously, the primary purpose of male genital cutting is the "toughening up" of the boy himself.  That deeply entrenched notions of gender and masculinity are intrinsic to this custom are, if anything, demonstrated all the more by the ridicule and scorn - the gender policing - to which men who publicly express their resentment about having had part of their genitals removed without their consent frequently are subjected.

Gross cannot be faulted for any supposition she may have that patriarchy adversely affects women's sexual health.  But I do think it appropriate to question her implication that patriarchy, of which neonatal circumcision is an integral part, does not also adversely affect men's sexual health - and not just as much as it does women's but, in fact, much, much more.  After all, say what you will about their neglect of the clitoris, when presented with one in a clinical setting, physicians do not, as a matter of course, cut it off. 

Gross ends, if not on an optimistic note, at least on a positive one.  Paraphrasing Dr. Rubin, she concludes,

There must be a concerted movement, one that transcends medicine's traditionally siloed specialties, to understand and map this anatomy.  And for that to happen, other fields need to recognize female sexual pleasure as essential and worth preserving.

I would go further than that.  Medical professionals, whatever "silo" they may occupy, ought to respect the sexual anatomy of everyone equally.  They should not impose their own preconceived concepts of gender on the bodies of patients and especially not on the bodies of neonates, whatever sex that neonate might be or even might just appear to be at birth.  Medical professionals should accord no less respect to the boundaries and integrity of prepuces than they should to clitorises.  They should not abandon their ethical obligations when parents ask them to remove normal, healthy erotogenic tissue from their children's bodies.  Medical professionals should be guided by a respect for the whole bodies, including the totality of their genital anatomy, of people with vulvas, people with penises, and intersex people, equally.  Above all, they should recognize not only that the sexual pleasure of every human being is essential and worth preserving but that the full sexual anatomy of every human being - prepuce and all - is, likewise, essential and worth preserving.

 

1. In "Genital Cutting and Western Discourses on Sexuality," the anthropologist, Kirsten Bell,  provides a short history of the Western conception of the clitoris - its "rise and fall and rise," again - that is considerably more nuanced than Gross's article might lead one to suppose.  Citing the work of Thomas Laqueur, Bell notes that 

during the Renaissance, the clitoris was routinely described as the organ 'which makes women lustful and take delight in copulation.' . . .
. . .
In 18th-century Europe, a radical reconstitution of female sexuality took place. . . . [and] the idea that woman was inherently passionate was sacrificed in the effort to assert a fundamental, underlying difference in female biology.
 

2. Bell (see footnote 1, above) also cites examples in her paper of circumcision proponents who readily acknowledge that circumcision decreases penile sensitivity yet view this as one of its "benefits," enabling the man to "'last' longer."  Bell observes that

although these commentaries are mostly from men circumcised at a later age, I believe that they articulate constructions of of male sexuality that are entrenched and pervasive.  Importantly, these anecdotes speak to the role that sexual competence plays in constructions of contemporary masculinity, as many men clearly believe that any loss of sensitivity that accompanies circumcision is compensated by their enhanced sexual performance [notes omitted].

3. It should also be borne in mind that the author of Last's Anatomy, Chummy S. Sinnatamby, was an anatomist from the United Kingdom and that Last's publisher, back in the 80s, was also based in the U.K. (which is, presumably, why it was available to O'Connell in Australia).  I do not know how many of those pages of descriptions of the penis in Last's Anatomy included accurate descriptions of the prepuce but it would not be surprising if they did, given that the incidence of neonatal circumcision had already begun to decline significantly in the U.K. by the1980s, in contrast to the United States where, to this day, over 50% of neonates who are born with penises are subjected to penile circumcision. 

4. Glick, Marked in Your Flesh, cited above; p. 15.

 

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About me: I am originally from New York City and now live near the Finger Lakes region of New York. I am a licensed physical therapist and I write about bodily autonomy and human rights, gender, culture, and politics. I
 currently serve on the board of directors for the Genital Autonomy Legal Defense & Education Fund, (GALDEF), the board of directors and advisors for Doctors Opposing Circumcision and the leadership team for Bruchim, an organization dedicated to fostering welcoming spaces for fellow Jews who have made the choice to reject penile circumcision in favor of a non-violent, non-painful, and non-harmful alternative - the brit shalom.

Wednesday, June 29, 2022

Abortion and Dred Scott

by David Balashinsky

After close to half a century of having a constitutionally-recognized right to obtain an abortion, American women* have now had that right taken away.  The Supreme Court of the United States, packed with anti-abortion ideologues, at least three of whom were placed there expressly for the purpose of overturning Roe v. Wade (and, arguably, a majority of them having been seated illegitimately) has now deprived American girls and women of a fundamental right that they have had for almost fifty years.  This has never before happened in our nation's history or in the history of Supreme Court decisions.  There have been major reversals of Supreme Court precedents before, as more enlightened versions of the Court have fulfilled their duty to undo the damage done by previous conservative ones.  But these other precedent-reversing decisions have always expanded liberty, not restricted it.  This is the first time that a long-established and deeply-embedded right has been taken away by the Supreme Court.  This is a right that a majority of women around the world (and an increasing majority, at that) currently possesses.  Not here.  Not any more.  In a nation "conceived in liberty," a nation that prides itself on being a beacon of freedom and democracy to the rest of the world, the basic question before the Supreme Court in Dobbs versus Jackson Women's Health Organization boiled down to this: Does the Constitution guarantee women the right to own their own bodies?  In answer to that question, the Court has delivered a blunt "No."  

Abortion constitutes an ultimately irreconcilable moral,  ethical and legal conflict between competing claims for an absolute right.  The claim made by abortion-rights opponents on behalf of the fetus (or zygote or embryo) is for the absolute right to life of the fetus.  But this right can only come at the expense of the right to bodily self-ownership of the girl or woman in whose body the fetus is gestating.  At the same time, the claim made by abortion-rights supporters is for the absolute right of bodily self-ownership of girls and women of child-bearing age.  In the case of abortion, this right can only come at the expense of the right to life of the fetus.  

The majority in Roe v. Wade, which, along with Planned Parenthood of Southeast Pennsylvania v. Casey, Dobbs now overrules, did not base its decision explicitly on a right of "bodily self-ownership" but on the right to privacy (which would seem to treat bodily self-ownership as a foregone conclusion):  

The Constitution does not explicitly mention any right of privacy.  In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford . . . (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.  In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia . . . (1969); in the Fourth and Fifth Amendments, Terry v. Ohio . . . (1968), Katz v. United States . . . (1967), Boyd v. United States . . . (1886), see Olmstead v. United States . . . (1928) . . . ; in the penumbras of the Bill of Rights, Griswold v. Connecticut . . . ; in the Ninth Amendment . . . ; or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska . . . (1923).  These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty," Palko v. Connecticut . . . (1937), are included in this guarantee of personal privacy.  They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia . . . (1967); procreation, Skinner v. Oklahoma . . . (1942); contraception, Eisenstadt v. Baird . . . ; family relationships, Prince v. Massachusetts . . . (1944); and child rearing and education, Pierce v. Society of Sisters . . . (1925), Meyer v. Nebraska, supra.

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.  The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. . . .

Significantly, the majority in Roe did not regard the right to privacy (and, presumably, the right to bodily self-ownership) as absolute and therefore sought a middle ground between the right of a woman to terminate her pregnancy and what it regarded as a legitimate state interest in "promoting . . . the potentiality of human life."  Roe thus incorporated a scheme in which pregnancy was divided into three trimesters:

For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician. . . .

For the stage subsequent to approximately the end end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it so chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. . . .

For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. . . .

This is not a radical decision.  Say what you will about its legal reasoning, Roe provided a pragmatic and eminently workable solution to the conundrum posed by the fundamentally irreconcilable claims of those on opposite sides of the abortion debate.  Moreover, the more-or-less equitable compromise of Roe is reflected in the widely prevailing beliefs and attitudes of a majority of the American people.

For my part, Roe did not go far enough.  For one thing, I have always been bothered by the idea that "the abortion decision . . . must be left to the medical judgment of the pregnant woman's attending physician."  It should be left to the girl or woman herself and to no one else.

Likewise, while I appreciate Roe's conclusion that the "Fourteenth Amendment's concept of personal liberty and restrictions upon state action . . . is broad enough to encompass a woman's decision whether or not to terminate her pregnancy," I am also bothered by the fact that the majority pointedly rejected the idea that the right to privacy is absolute as is, by implication, the right to bodily self-ownership:

. . . [A]ppellant and some amici argue that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses.  With this we do not agree.  Appellant's arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive. . . . [A] State may properly assert important interests in safeguarding health in maintaining medical standards and in protecting potential life.  At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision.  The privacy right involved, therefore, cannot be said to be absolute.  In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions.  The Court has refused to recognize an unlimited right of the kind in the past.

If the right to privacy as established under the Fourteenth Amendment is not, in fact, absolute, that is why the decision in Roe should have been predicated, instead, on the Thirteenth Amendment, the amendment outlawing slavery and involuntary servitude.  Any statute that prohibits abortion - especially without exception and during the pre-viability period - denies women ownership of their own bodies and, thereby, relegates pregnant women to the level of chattel.  It reduces them to living, breathing state-controlled incubators.  As for involuntary servitude, what are forced pregnancy and childbirth if not that?  

The question is, if pregnant women do not own their own bodies, as Dobbs has determined, who does?  Prior to the enactment of S.B.8 in Texas, presumably, abortion bans rested on the premise that women's bodies, once they become pregnant, become the property of the State.  However, since Texas, in banning most abortions, has cleverly taken the State out of its enforcement mechanism, the bodies of pregnant women should more properly be understood to be the collective property of all other citizens.  (So much for conservatives' professed hostility to socialism.)

My own view is that the ethics of abortion start from the premise that every woman has an absolute right of ownership and control of her body and this right outweighs all other competing or conflicting rights.  It follows, therefore, that the right of ownership and control of one's own body includes the right to terminate a pregnancy.

This is not to suggest that the ethics of abortion (as opposed to laws restricting it) should not involve weighing factors such as the the timing and the reason for an abortion.  There are abortions that I regard as not just ethically unacceptable but morally repellent.  An example would be an abortion performed solely for sex-selection; another would be an abortion imposed upon a woman without her consent.  This last example is as much a violation of bodily autonomy as denying a woman her right to an abortion would be.  But, leaving this example aside, I can certainly imagine other cases of abortion that I would regard as unethical.  Yet the conviction with which I hold my own ethical views does not entitle me to impose them on another person to the extent of usurping her ownership of her own body.  An ethical precept may be compelling; it can and ought to carry a great deal of weight.  But it cannot outweigh a right.  Those who oppose abortion on ethical (or religious) grounds are free to use moral suasion (as opposed to coercion) to encourage women not to terminate their pregnancies.  What they should not be free to do - whether acting as individuals or in concert through state mechanisms - is prevent women from exercising their fundamental right to terminate their pregnancies.   That holds in every case across the spectrum of abortions, from those abortions that are ethically unambiguous (for example, to save the life of the woman carrying the fetus), to abortions in which the explicit reasons may be regarded (by those who would support abortion in more compelling cases) as insufficient to justify abortion, to those abortions that may be regarded  as unambiguously morally repugnant.  Even moral repugnance is not a sufficient justification for denying a woman her fundamental right of bodily self-ownership.

The essential holding of the current Supreme Court majority in Dobbs is that, because abortion is not mentioned by name, a right to have one does not exist under the Constitution.  There are, of course innumerable things that are not mentioned in the Constitution but their omission does not imply that they can be proscribed.  That is particularly true of rights.  Indeed, the Ninth Amendment specifically states that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."  It was partly on the basis of this amendment that the majority in Roe recognized the right to abortion.  But, as noted above, the decision in Roe was based even more substantially on the right of privacy implicit in the Fourteenth Amendment. 

The Dobbs decision offers numerous specific justifications for its overruling of Roe and for its blanket condemnation of Roe as "egregiously wrong from the start."  But does anybody really believe that the majority in Dobbs consists of impartial jurists who are as neutral on abortion as they assert the Constitution is?  I'm no constitutional scholar but it seems to me that if a jurist is appointed to the Supreme Court explicitly for the purpose of overturning Roe, as Gorsuch, Kavanaugh and Barrett all were, or if a jurist with a long history of hostility to Roe sets out to overrule it, as Alito did, it should not be too difficult for him to selectively quote case law and cherry-pick history in order to rationalize the desired legal outcome.  

It's also remarkable that the majority, in attempting to justify its overruling of Roe (and Casey argues that 

what sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decision acknowledged: Abortion destroys what those decisions call "potential life" and what the law at issue in this case regards as the life of an "unborn human being."

In other words, the right to an abortion is unlike any other because the exercise of that right results in the death of another person or potential person, depending upon one's view of fetal life.  And, yet, one day prior to issuing its ruling in Dobbs, the same majority on the Court had no compunction about striking down a New York law that restricted the right to carry a gun in public.  Evidently, unlike abortion, guns are not implicated at all in the destruction of human life.

Dobbs will forever be recognized as one of the most transparently ideological, perverse and antidemocratic Supreme Court decisions in our nation's history - perhaps in any nation's history.  I can think of only one other that equals it in its wholesale diminution of the status of an entire class of persons to the level of legal subservience: the Dred Scott decision.  Dred Scott v. Sandford was the 1857 decision written by chief justice Roger B. Taney which held that Black people, even those born in the United States but whose ancestors had been enslaved and brought to the United States as enslaved people, could not be citizens of the United States.  Taney ruled, additionally, that enslaved Black people were, legally-speaking, property and, therefore, that any law that deprived slave-owners of their human property was, under the Fifth Amendment, unconstitutional.

There is another Supreme Court decision that at least approaches Dred Scott and Dobbs in its broad denial of fundamental rights to an entire class of persons: the Bowers v. Hardwick decision of 1986.  This was the decision that confirmed that states may ban certain private sexual acts between consenting male adults.  Although, as written, the statute being challenged banned oral and anal sex between anyone, regardless of sex or sexual orientation, the Bowers case concerned the prosecution of two gay men.  Accordingly, the question as framed in the majority's decision was whether the Constitution guaranteed a right to engage in "homosexual sodomy" and the Court ruled that it did not.  Bowers was regarded as a sweeping repudiation of the right of gay men to engage in sexual relationships.  When the ruling was issued, attorney and former director of the Lambda Legal Education and Defense Fund, Tom Stoddard, famously said, "Twenty-five years from now this will be viewed as the Dred Scott case of the gay rights movement." (Bowers was reversed seventeen years later by Lawrence v. Texas.)

I do not think we will need to wait twenty-five years to view Dobbs as the Dred Scott case not just of women's reproductive rights but of their status as formerly free and equal citizens and as human beings.  Just as Dred Scott relegated Black people to the legal status of non-citizens and property, the Dobbs ruling has now established under the Constitution the prerogative of every state legislature to reduce the legal status of pregnant women to that of less-than-autonomous citizens who may legally be deprived of their right to ownership and control of their own bodies and reproductive lives.  It's hard to put a word to the subservient legal status to which this Court has now given the states carte blanche to reduce women but it's not an exaggeration to say that women in states that ban abortion may now be regarded as not fully persons.  Indeed, as Michelle Goldberg reminds us,  Ellen Willis expressed it perfectly decades ago when she observed that "the central question in the abortion debate is not whether a fetus is a person but whether a woman is."  In answer to the second part of that question, the Supreme Court has also now delivered a blunt "No."

Dred Scott was never overruled by a subsequent Supreme Court.  It took the Civil War and ratification of the Thirteenth and Fourteenth Amendments to undo it.  In fact, the Dred Scott decision is widely recognized as one of the precipitating factors that led ultimately to the Civil War itself.  Will the Dobbs decision prove to be just as destructive?  Undoubtedly.  Will it ultimately lead, as the Dred Scott decision ended up doing, to a major social and political upheaval and to a fundamental reordering of our political and legal systems so that the right of women to own and control their own bodies is universally recognized, codified, treated as inviolable and placed, once and for all, beyond the reach of those who would abridge or deny it?  That, dear Reader, is up to you.

* While I acknowledge the fact that there are people capable of becoming pregnant who identify as men, I have consciously chosen to limit the use of sex-identifying words in this essay to "girls" and "women."  In part, this is an editorial choice for simplicity.  However, in the broad context of the historical struggle for women's equality and in the specific context of the struggle for women's reproductive rights, I also believe that taking the focus off of women - as historically understood to comprise the female half of a sexually dimorphic species - in the present case would be a disservice to them and to those struggles.  After all, as Michelle Goldberg reminds us, "a core feminist insight [is] that women are oppressed on the basis of their reproductive capacity."  It follows, therefore, that laws and policies that restrict access to abortion oppress women as women and not simply as people who happen to be capable of being pregnant.  In other words, when women are deprived of their reproductive rights it is not in spite of the fact that they are women but because of it.  Thus, to fail to identify women by name as a distinct class with a history of oppression in a discussion of abortion rights would be to negate the entire premise of that discussion.

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About me:  I'm originally from New York City and now live near the Finger Lakes region of New York. I'm a licensed physical therapist and I write about bodily autonomy and human rights, gender, culture, and politics. I
 currently serve on the board of directors for the Genital Autonomy Legal Defense & Education Fund, (GALDEF), the board of directors and advisors for Doctors Opposing Circumcision and the leadership team for Bruchim.